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Reining In the Excesses of Title IX

What happens when a morally reprehensible administration puts forth morally just reforms? We are about to find out. A New York Times report on Wednesday outlined the Trump administration’s proposed revisions of rules governing how campuses deal with sexual misconduct allegations (the official release is expected by October). A year ago, Department of Education Secretary Betsy DeVos declared that the rules and procedures put in place by the Obama administration on this volatile subject had created a “failed system” that brought justice neither to accuser nor accused. She promised to change that.

Now we have a snapshot of her administrative proposals. These would rein in some of the excesses of Title IX—the federal law that prohibits sex discrimination in education—that took off in 2011 when President Obama made the elimination of campus sexual assault a key domestic policy. Worthy as this was, it resulted in a radical inflation of the definition of sexual misconduct on campus to potentially include virtually any sexual encounter—from behavior that could meet the criminal definition of rape, to jokes and unwanted flirtation. And schools, desperate to avoid displeasing federal Department of Education investigators, established Title IX procedures that flouted the rights of the accused.

Some of the proposals are the beginning of a necessary correction. Others are almost guaranteed not to achieve their intended goals; some could even backfire. And at least one provision may weaken a significant protection for complainants.

As I wrote in a three-part Atlantic series last September, the use of Title IX to protect female students, however well-intentioned, has resulted in the over-policing of sex between young adults. It has also sometimes resulted in adjudications that assume guilt, rely on junk science, gut fundamental fairness, engage in racial animus, and disregard the effects of ending men’s education and crushing futures. The Times’s story was based on a leak, so we still need to see all the rules in their final form. Because these proposed rules will go through an administrative process known as “notice and comment”—meaning the public can weigh in—revisions are likely.

There is no doubt that, in the past, women’s accounts of sexual assault were disbelieved, and too many violators went unpunished. Today there are wrongdoers, even some predators, on campuses—as there are in the rest of society. But there is no evidence that they exist in droves or that campuses are terrifying “hunting grounds.” The people I’ve spoken to over the years who deal closely with Title IX say many of the cases involve alcohol-lubricated encounters that both students agree began consensually. But on campus the rhetoric has been alarming, telling young women they are weak, helpless, and lack sexual agency, and that their male classmates are inherently violent and exemplars of “toxic masculinity.”

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Although it wasn’t reported in the Times, according to a source familiar with department deliberations who did not wish to be identified, the new rules will require that the training materials for Title IX investigators and adjudicators, and the proceedings themselves, must be impartial and free of sexual stereotypes. Often campuses demand a “trauma-informed” response to accusations. Last year, I wrote about the rise of bogus trauma science on campus, and the false assertions about how the mind is supposed to respond when faced with potential imminent death. Adoption of this junk science in Title IX training materials hampers the ability of an accused student to mount a defense since everything from an accusing student’s failure to reject a sexual overture, to her changing accounts of what happened, to her seeking out further sexual contact can be ascribed to trauma.

Schools keep training materials confidential and have fought in court against turning them over to the accused. It’s no wonder. The materials that have been made available are shot through with assumptions that female accusers have experienced life-threatening ordeals and that male accused are serial predators. The Trump administration’s proposal to eliminate bogus and stereotypical assumptions could help start a necessary cultural shift. But what’s the likelihood of such a reevaluation if it comes from the administration of a man who boasted of grabbing women’s genitals and has been multiply accused of sexual violations?

Under the Obama administration, virtually everyone on campus was deputized to report anything that could constitute a sexual violation—including rumors and hearsay. Most school employees were designated as mandatory reporters, responsible for alerting Title IX officials about possibly questionable sexual encounters, even if a supposed victim had no interest in reporting. This has resulted in students being labeled as perpetrators and punished even when no victim has come forward, or when the alleged victim strenuously objects to the adjudication. Capturing the tenor of the times, Drexel University’s Title IX office adopted a Homeland Security-style motto: “See something, hear something, know something, say something!”

All this would be rolled back under Trump. According to the Times, the new rules would significantly narrow the definition of what constitutes sexual misconduct on campus, adopting the Supreme Court’s definition of sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”And no longer would campus officials be expected to have all-encompassing awareness of possible sexual misconduct on campus—unless these officials exercised deliberate indifference. Under Trump rules, schools would now be liable for the way in which they handle formally filed Title IX complaints.

During the Obama administration, the aegis of Title IX expanded to cover the world. Some male students have been punished on their own campuses for sexual encounters that took place over the summer, or far away, or even with young women who weren’t students at their school. The Trump proposal would limit a school’s liability to sexual encounters that take place on campus or during a school-sponsored program in the U.S. But this extreme narrowness is troubling. Most college students don’t live in dorms, and many disputed sexual encounters take place in nearby off-campus housing and at fraternities. This change would unduly restrict accusers from bringing complaints about encounters with fellow students that took place during the school year; let’s hope it gets reconsidered.

One of the most criticized Obama mandates was the requirement that schools assess allegations of sexual misconduct using the lowest legal standard, “preponderance of the evidence,” or what is numerically rendered as anything over a 50 percent likelihood. The Trump rules would give schools the option to use a higher standard of “clear and convincing evidence,” often described as at least 75 percent certainty.

Justin Dillon, a Washington, D.C., attorney who represents accused students around the country, says the option of choosing the clear and convincing standard is “completely hollow” because schools simply won’t do it (a handful of states have laws requiring preponderance). During the past year, while waiting for DeVos’s promised proposals, many campus officials declared their opposition to Trump reforms, vowing in particular to stick with the preponderance standard. Dillon says he is skeptical that DeVos’s procedural improvements will substantially change Title IX proceedings. One proposal would require schools to share the evidence in the case with the complainant and respondent. But in Dillon’s experience, schools don’t know how to gather or weigh evidence, and often they are not interested in exculpatory texts or other materials offered by the accused.

Although there are aspects of the Trump administration proposals that will require further explication and improvement, their core is about procedural fairness for both accuser and accused, continuing to ensure a wide array of support is available for the accuser, and even allowing mediation between the parties (though only if both seek this alternative). In other contexts, Democrats and left-leaning activists would agree with these basic principles. Democrats traditionally pride themselves on being the party of due process, and of opposing over-criminalization. But not when it comes to college campuses. New York Senator Kirsten Gillibrand tweeted that DeVos favors “predators over survivors,” and Connecticut Senator Richard Blumenthal tweeted that the proposals were “Deplorable & disgusting.” The prominent activist group, Know Your IX—which was instrumental in helping create many of the Obama policies—declared, “The Trump Administration’s proposed rules have one clear goal: to let schools off the hook for covering up rape and sexual harassment.”

But reforms are necessary. Look at the cases of waiting until a male student is on the eve of graduation before filing a Title IX complaint against him. The California attorney Mark Hathaway, who represents accused students, said this past spring he had more than a dozen inquiries from students facing this. It was common, he said, that the accusations were about events “that might have happened when they were freshmen or sophomores.” The advocacy group Families Advocating for Campus Equality (FACE), made up of parents of accused students, has also noticed this phenomenon. Shelley Dempsey, an attorney who is vice president of the group, said they have heard from graduating students who have had job offers withdrawn and acceptances to medical, dental, law, and graduate school rescinded. She said that even after being cleared—a process that can take months—some students have been told the accusation alone was grounds for voiding their graduate school admission.

In the realm of sexual misconduct, Title IX is supposed to protect a student from a hostile environment on campus—for example, not having to share a classroom or live in a dormitory with someone who assaulted her. But that purpose is not served by waiting until a classmate is about to depart school for good before bringing a complaint. One former Department of Education civil-rights attorney who now consults with schools told me he was increasingly concerned about cases in which Title IX is used for “social combat”—that is, a way for students to work out bad breakups by reporting each other. Hathaway says recently he has had a surprising number of accused female clients. “Whoever gets to the Title IX office first wins,” he said, “because the presumption is that any accusation is true.” He adds, “You have absurd claims being investigated that common sense would have rejected.”

While campus officials have been declaring their intention to be a bulwark against potential Trump due process reforms, there has been one significant countervailing trend. Lawsuits brought by male college students who say they were punished unfairly and denied basic rights by their schools have been working their way through the court system with increasing success. Brooklyn College history professor KC Johnson, co-author of The Campus Rape Frenzy, tracks these cases. He says that in recent years, “Courts are increasingly exasperated that this debate has been going on so long, and colleges are unwilling to make even token moves to a fairer system.” An August ruling by United States District Judge Matthew W. Brann, an Obama appointee, allowed the suit of a male former Penn State student to proceed against the university. Brann wrote that schools have a responsibility to mete out appropriate punishment, then added (italics his), “Complimenting this interest in discipline, however, is PSU’s interest in securing accurate resolutions of student complaints … PSU’s educational mission is, of course, frustrated if it allows dangerous students to remain on its campuses. Its mission is equally stymied, however, if PSU ejects innocent students who would otherwise benefit from, and contribute to, its academic environment.”

Last fall, in an important ruling, a United States Court of Appeals found that the University of Cincinnati violated the rights of a male student suspended for sexual assault when it failed to provide him with an opportunity to cross-examine his accuser in any form after she failed to show up for his hearing. The Obama administration had discouraged direct cross-examination by students of each other, writing that it could be “traumatic or intimidating.” Indeed, it’s not a good idea to allow hostile teenagers to directly question each other. But the Obama administration failed to encourage a system that provided another party, be it an adviser or an attorney, to conduct the questioning. The appeals court found that the university needed to give the male student an opportunity to test the credibility of his accuser.

The Trump proposal restores cross-examination to Title IX hearings—and allows for direct questioning. But it’s an incomplete reform, and may backfire. The proposal would also let schools continue to use a “single-investigator” model championed by the Obama administration, in which instead of having a hearing, one person acts as investigator, judge, and jury. Johnson says a “nightmare scenario” is that more schools move to the highly prejudicial single-investigator model in order to avoid letting accusers be questioned.

The DeVos declarations last year about the fundamental lack of fairness in Title IX proceedings came just before the revelations about Harvey Weinstein and the subsequent #MeToo tidal wave. In that short time some powerful men have been toppled, and even indicted and convicted of criminal behavior. But #MeToo has also brought forth more complicated complaints. Some men facing accusations, such as comedian Aziz Ansari, found defenders who argued their accusers had not described assault, but bad consensual sex.

Some professional women have themselves been accused of sexually violating younger, less powerful men, including the actress Asia Argento and the academic Avital Ronell. Masha Gessen, writing in The New Yorker on the messiness of the Ronell case noted, “That messiness—or, rather, the discussion that has resulted from it—is its unlikely silver lining.” There is a growing agreement that the movement will be strengthened by self-examination, by the acknowledgement that violations occur on a lengthy continuum, and that the ruination of reputations and careers is not always a fitting punishment.

On campuses, this type of discussion—or indeed any introspection about the excesses of Title IX, the unfairness of the procedures, and the damage done to both young men and women on campus—has been strenuously avoided. But institutions of higher education are exactly the place where such examination should take place. I understand the unease in embracing policies promulgated by a reprehensible administration. But reprehensible things have been happening on campus for too long now. The Trump administration is proposing needed reform that will go through the safeguards of public notice and comment. Those who seek to resist and discredit due process and fairness are only hurting their own cause.